Controversy over denial notifications
July 12 2011, 6:05 PM by Ray Acheson, Reaching Critical Will
Ambassador Moritan’s working paper proposed:
Each State Party shall submit annually to the Implementation Support Unit a report for the preceding year concerning the transfer of arms as detailed in article C1 and C2 above, as well as any new national legislation or other measures used to regulate or control the items and transaction under the Treaty’s domain and details of denied transfers and grounds for their denials, particularly highlighting cases where licensing was granted to previously denied importers.
The positions on such a proposal have been widespread, ranging from rejection of notification of denial in all forms to acknowledgement of merit in this practice but with feeling that greater clarification is needed. The general mood, nonetheless, has been that the choice to grant or deny authorizations rests in national authorities. The European Union made clear that denial decisions are a national responsibility. Germany also pointed out that it does not operate inside a system of ‘blacklisting’ so would not want to be required to highlight those cases where importers were previously denied. Furthermore, the United States explained that there has never been an obligation for a state to transfer arms to a given recipient insofar as there is no alienable right to receive arms. The United States made reference to ‘diplomatic inquiries’ concerning transfers that would make diversion and misuse less likely. Norway also called for greater clarification and discussion on the issue of transfer denials. Argentina called for a specific notification model that could be easily followed and shared with others. The Uruguayan delegation offered a positive opinion on notification of denials recognizing that it is a sensitive issue, but affirming that it is an important component to maintain nonetheless. Jamaica also expressed strong support for denial notifications.
There were many delegations that remained unconvinced that notification of denials was either necessary or helpful for an arms trade treaty. The Brazilians warned against paving the way for embargoes and trade restrictions based on such forced information sharing based on notification denials. Likewise, Canada (and others) expressed concern over denial notifications given the confidential nature of such issues related to national security. The Canadian delegation explained that such information sharing should not be required, although transparency is critical to a successful ATT. France explained that notification of decision for denial could contain sensitive commercial information and that they would not support of such a provision. Perhaps most vehemently against this provision were the Israeli and Indian delegations. Israel stated that decisions for authorization are an entirely national decision in accordance with national export systems and legislation. Therefore, such decisions should not be subject to international interference of any kind. The Indian delegation went so far as to say that reporting could be useful, but record keeping should be eschewed. Reporting denials, they believe, could easily provide the pretext for politicization of the ATT’s implementation.
With the exception of just a few member states, the resounding opinion among delegations has been that denial for transfers remains a distinctly national prerogative. The suggestion of the United States proves useful in that ‘diplomatic inquiries’ regarding denials should be an available option when there is reasonable cause of concern over a particular transfer. There is an incontestable need for transparency in implementing an ATT on the part of all member states through their national authorities. However, it is not likely that there will be consensus among states that denials will be required to be reported given the potential sensitive commercial and security information involved.
Australia offered a reasonable alternative, by which there would be a provision in the treaty that affirms that states will do all they can to remain open, transparent, and in communication regarding their authorizations, but that it is not a requirement to report every transfer denial. Both the European Union and Belgium offered the option of providing aggregate data about denials in national reports rather than information about any specific transfer denial.
It is important to garner as high a level of consensus as possible on this issue. Furthermore, it is important to not overburden states with excessive reporting requirements that would discourage overall enthusiasm and divert resources needed for other critical components of ATT implementation. However, following the reasonable suggestions of Australia, Belgium, the United States and others, we believe that protocols for effective denial notifications can achieve general agreement among the majority of states.